President Trump's Executive Order to Control the Hiring of H-1B Workers

Question,

What are the President Trump's executive order for any H1B program changes?

Answer,

President Trump has signed an executive order - buy American, hire American. The ‘hire American’ portion of the executive order aims to control the hiring of foreign national workers, especially via the H1B workers, and it seeks out ways to stop supposed “abuses” of the H1B program.

While the executive order will not directly make changes to the H1B program, it does pave the way for changes to be made later. For "hire American" and createing higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to enforce the laws governing entry into the United States of workers from abroad.

The H-1B visa program has been assailed for years by critics who say it is used by companies to hire cheap, foreign workers in place of Americans. Its proponents say it provides much-needed skilled workers to sectors where companies have struggled to hire Americans.

US Citizenship and Immigration Services (USCIS) approved 85,000 H-1B visas annually, 65,000 go to foreign workers who possess at least a bachelor's degree or equivalent, and an additional 20,000 for those who have earned a master's degree or higher in the US.

Trump took aim at the "totally random" lottery system in his remarks, saying the visa system must ensure that only the most skilled, highly paid workers are allotted such visas, and never at the expense of American labor.

I have a pending Form I-485 application, and now I want to change job for "AC21 job portability". Do I need to file Form I-485 supplement J to USCIS, to let them know that my I-485 application should be approved on the basis of a change to a “same or similar” position?

Answer,

The U.S. Citizenship and Immigration Services (USCIS) now requires most new employment-based Form I-485 adjustment of status applications to be accompanied by an Form I-485 supplement J. There are two situations in which I-485 supplement J must be filed:

1) The supplement J must be filed concurrently with form I-485, if it is based on a pending or approved form I-140, unless the Form I-140 application is an EB1 Extraordinary Ability petiiton or a Eb2 National Interest Waiver (NIW) petition.

2) If an alien applicant has a pending Form I-485 application and qualifies for AC21 job portability, supplement J must be submitted to the USCIS to request that the Form I-485 application be approved on the basis of a change to a “same or similar” position. In this case, the alien applicant may file the supplement J upon the employment change.

If supplement J is filed concurrently with the I-485, the USCIS will simply issue a receipt notice for the I-485. No separate receipt will be issued for the supplement J.

If supplement J is submitted for AC21 purposes regarding a change in employment, the USCIS will issue a receipt notice to confirm receipt of the supplement. The USCIS will then adjudicate the form, and either issue an approval or denial on the AC21 request.

USCIS Policy Change for Some Computer Programmers to Apply for H1B Status

Question,

I read some news that there is a USCIS policy change for some computer programmers to apply for H1B status. Is it true and what is the change actually?

Answer,

USCIS (United States Citizenship and Immigration Services) recently released a policy memorandum that may affect the ability of some foreign aliens employed as computer programmers to obtain H1B status.

The new memorandum specifically revokes previous memorandum, which had stated that a computer programmer position would generally qualify as a “specialty occupation”, and be eligible for approval of an H1B petition. The previous memorandum does not fully or properly articulate the criteria that apply to H-1B specialty occupation adjudications, also it did not accurately portray essential information from the USCIS Handbook that recognized that some computer programmers qualify for these jobs with only “2-year degrees.”

The new USCIS memorandum advises that persons employed as computer programmers, particularly those in entry-level positions, may not be considered to be employed in a “specialty occupation,” and may not qualify for H1B status, because a bachelor’s degree in a specific field may not be required for the computer programmer position. The USCIS states in the memorandum that this is not a change in policy. However, the language of the memorandum does appear to present some new challenges to companies in the information technology field.

My Current J1 Status Will Expire Soon, Can I Work while My Form I-485 Is Pending?

Question,

My current J1 status will expire soon. I have submitted Form I-485 application based on my EB-1A petition approval. Can I work while my Form I-485 is pending?

Answer,

If you filed Form I-485 based on the approved Form I-140 immigrant petition prior to expiration of your I-94, you will remain in the authorized period of stay until your Form I-485 is adjudicated. It is not a status, but you are authorized to stay in the U.S. to await a decision on your case, and you are also authorized to apply for work authorization (EAD) and travel document (Advance Parole) while your Form I-485 application is pending. You can also apply for EAD and Advance Parole together with your Form I-485 application.

If your I-485 was filed prior to the expiration of your nonimmigrant status (I-94), then you remain lawfully present in U.S. and you will continue to be eligible for adjustment of status, as long as you do not work without authorization or violate other laws. You will not be overstaying, nor will you accrue any unlawful presence.

USCIS Will Temporarily Suspend Premium Processing for all H-1B Petitions

Question,

Is it true that USCIS will temporarily suspend premium processing for all H-1B petitions? and even include H-1B application for cap-exempt jobs, such as working for a university?.

Answer,

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B visa/status petitions. This H-1B premium processing suspension may last up to 6 months. While H-1B premium processing is suspended, the H-1B petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129 (Petition for a Nonimmigrant Worker)

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This suspension will apply to all petitions filed for the FY2018 H-1B regular cap and master’s advanced degree cap exemption. The suspension also applies to petitions that may be cap-exempt.

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request. USCIS will review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.